Open Courts Compendium

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

The public trial has roots in English common law and has been universally recognized in the United States since its earliest days as a nation. Gannett Co. v. DePasquale, 443 U.S. 368, 414 (1979) (Blackmun, J., concurring in part and dissenting in part). The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The right to a public trial has long been viewed as a safeguard against any attempt to employ our courts as instruments of persecution. United States v. Thunder, 438 F.3d 866, 867 (8th Cir. 2006) (quoting In re Oliver, 333 U.S. 257, 270 (1948)). The requirement of a public trial is for the benefit of the accused; the public may see he is fairly dealt with, and the presence of interested spectators may keep the jury aware of its responsibility and the importance of its function. Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting In re Oliver, 333 U.S. at 270 n. 25).

The right of the accused in the Sixth Amendment is no less protective of a public trial than the First Amendment right of the press and public. U.S. v. Thompson, 713 F.3d 388, 392 (8th Cir. 2013) (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)).

Using the same language as the Sixth Amendment to the United States Constitution, article 2, section 10 of the Arkansas Constitution provides for “the right to a speedy and public trial.” In Sirratt v. State, the Supreme Court of Arkansas recognized that the right to a public trial is one of the most important safeguards in the prosecution of persons accused of crime. 240, Ark. 47, 53, 398 S.W.2d 63, 66 (1966). Furthermore, members of the public have an interest in the trial of one charged with a felony, for a crime is a wrong against the public, and affects every citizen. Commercial Printing Co. v. Lee, 262 Ark. 87, 94, 553 S.W.2d 270, 273 (1977). The Supreme Court of Arkansas noted that openness is particularly appropriate during the jury selection process. Memphis Pub. Co. v. Burnett, 316 Ark. 176, 178, 871 S.W.2d 359, 360 (1994).

Quoting 18th Century legal writer Sir William Blackstone, the Supreme Court of Arkansas found that the public has a common-law presumption of access. Commercial Printing Co. v. Lee, 262 Ark. 87, 94-95, 553 S.W.2d 270, 273-274 (1977). The right to access, however, is not absolute. Arkansas Television Co. v. Tedder, 281 Ark. 152, 156, 662 S.W.2d 174, 176 (1983). Arkansas Rule of Civil Procedure 77(b) states that “[a]ll trials and hearing shall be public except as otherwise provided by law.” (emphasis added).

B. Overcoming a presumption of openness

Recognizing that the “right of public access is not absolute,” the Supreme Court of Arkansas adopted a two-part test in Arkansas Television Co. v. Tedder, 281 Ark. 152, 156, 662 S.W.2d 174, 176 (1983).

C. Procedural prerequisites to closure

Tedder requires that the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to fair trial. 281 Ark. 152, 156-157, 662 S.W.2d 174, 176 (1983). The trial court’s findings must also be articulated and sufficiently specific to demonstrate on review that these requirements have been satisfied. Id. at 157, 662 S.W.2d at 176.

II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The Supreme Court of Arkansas ruled in Commercial Printing Co. v. Lee that even when not a party to the litigation, the media has standing to question the validity of closed proceedings. 262 Ark. 87, 90, 553 S.W.2d 270, 271 (1977).

D. Obtaining review of initial court decisions

III. Access to criminal proceedings

A. In general

Though there is a presumption of openness in Arkansas, some proceedings can be closed. Arkansas Rule of Civil Procedure 77(b) requires that all trials and hearing be public except as otherwise provided by law.

B. Pretrial proceedings

The Supreme Court of Arkansas ruled in Arkansas Television Co. v. Tedder, 281 Ark. 152, 157,662 S.W.2d 174, 175 (1983), that the presumption of openness also applies to pre-trial proceedings. For example, the court found that there was a presumption of public access during a suppression of evidence hearing. Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979).

C. Criminal trials

The Supreme Court of Arkansas upheld Article 2, § 10, of the Arkansas Constitution, which provides that an accused in a criminal prosecution shall enjoy the right to a speedy and public trial. Commercial Printing Co. v. Lee, 262 Ark. 87, 94, 553 S.W.2d 270, 273 (1977). The court goes further to say that members of the public have an interest in the trial of one charged with a felony, because a crime is a wrong against the public, and affects every citizen. Id.

D. Post-trial proceedings

The United States Court of Appeals for the Eighth Circuit held that there is a Sixth Amendment right to insist on public access at sentencing hearings. U.S. v. Thompson, 713 F.3d 388, 393–94 (8th Cir. 2013). The court stated that it was clearly established that the public trial right extended beyond actual proof at trial and could be invoked by the press and the public under the First Amendment, or the accused under the Sixth Amendment. Id. at 392 (citing Waller v. Georgia, 467 U.S. 39, 45 (1984); Presley v. Georgia, 558 U.S. 209 (2010) (per curiam)).

E. Appellate proceedings

IV. Access to criminal court records

Arkansas Supreme Court Administrative Order No. 19(II)(1)-(3) defines court records as any document, information, data or other item created, collected, received, or maintained by a court in connection with a judicial proceeding or pertaining to the administration of the judicial branch of government. If a court record is rendered confidential by protective order, the confidential content shall be redacted, but there must be publicly accessible indication that the material has been redacted. Ark. Sup. Ct. Admin. Order No. 19(IV)(C). Records that have been expunged or rendered confidential by other legal authority that expressly prohibits disclosure do not have to be given to the public. Id.

A. In general

In 2007, the Supreme Court of Arkansas adopted an administrative order that outlines the state’s policy on court record access, with a purpose to promote accessibility to court records. Ark. Sup. Ct. Admin. Order No. 19. Criminal records may be excluded from public access if they are sealed or expunged pursuant to Ark. Code Ann. §§ 16-90-901, et seq. A reporter may make a written request for such records if they can demonstrate that “reasonable circumstances exist that require deviation from the general provisions of the order” or “the public interest in disclosure outweighs the harm of disclosure.” Ark. Sup. Ct. Admin. Order No. 19(VIII)(A)(1-2).

B. Arrest records

In 1991, the Supreme Court of Arkansas held that for purposes of Arkansas’s Freedom of Information Act, the jail log, arrest records, and shift sheet are not records containing undisclosed law enforcement investigations and are subject to disclosure pursuant to Ark. Code Ann. § 25-19-105 (Arkansas’s Freedom of Information Act). Hengel v. City of Pine Bluff, 307 Ark. 457, 464, 821 S.W.2d 761, 764 (1991).

Arrest records of juveniles, however, are subject to Arkansas Code Annotated § 9-27-309(k), which provides that information regarding the arrest or detention of a juvenile shall be confidential unless the exchange of information is: (1) for the purpose of obtaining services for the juvenile or to ensure public safety; (2) reasonably necessary to achieve one or both purposes; and (3) under a written order by the circuit court.

C. Dockets

The Supreme Court of Arkansas adopted a policy that grants public access to court records, including all court records, including the register of action and docket sheets, available to the public during business hours established by the court. Ark. Sup. Ct. Admin. Order No. 19. The Administrative Order also said that “[c]ourts should endeavor” to make information, including dockets, available by remote access “when available in electronic form.” Ark. Sup. Ct. Admin. Order No. 19(V)(A)(3).

D. Warrants, wiretaps and related materials

The First Amendment right of public access extends to the documents filed in support of search warrant applications. In re Search Warrant for Secretarial Area Outside Off. of Gunn, 855 F.2d 569, 573 (8th Cir. 1988). Restricting public access to these documents, however, may be necessitated by a compelling government interest in the on-going investigation. Id. at 574.

E. Discovery materials

F. Pretrial motions and records

The Supreme Court of Arkansas said the general rule is that “that pretrial proceedings and their record must be open to the public, including representatives of the news media, and before an exception to that general rule is made, the test set out in Arkansas Television must be met.” Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 215, 662 S.W.2d 826, 827 (1984) (citing Arkansas Television Co. v. Tedder, 281 Ark. 152, 157, 662 S.W.2d 174, 176 (1983) (creating a two-part test for closure: “the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to fair trial.”)).

G. Trial records

Administrative Order No. 19 provides in Section V that courts should endeavor to make listings of case filings, judgments, orders, or decrees—when they are available in electronic form—available to the public. Court records, however, can be rendered confidential by a protective order. If the record contains information or evidence that could embarrass or exploit minors, there is good cause to seal portions of the record and briefs. Ward v. State, 369 Ark. 313, 313, 253 S.W.3d 927, 927 (2007) (per curiam). In addition, the Arkansas Court of Appeals reads Ark. Code Ann. § 9-27-309 to require sealing the trial record and briefs in juvenile delinquency cases on appeal. D.W. v. State, 2010 Ark. App. 486 (Ark. App. 2010). Though the press has a right to attend public trials, it does not have a constitutional right to copy audiotapes that were admitted into evidence in a mail fraud trial. United States v. Webbe, 791 F.2d 103, 105 (8th Cir.1986).

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

The common law right of access to judicial records is not absolute. Nixon, 435 U.S. at 598; In re Applications of Kansas City Star, 666 F.2d 1168, 1176 (8th Cir. 1981). The decision as to access is one best left to the sound discretion of the trial court, which will exercise discretion in light of the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 599.

V. Access to civil proceedings

A. In general

Arkansas Code Annotated 16-10-105 says that all sittings of Arkansas trial courts are public and may be attended by any person. There are, however, statutory limitations on that general rule, as several other statutes require certain proceedings—like adoption hearings and domestic relations cases—to be closed. Ark. Code Ann. 4-75-605 (adoption hearings); Ark. Code Ann. 16-13-222 (domestic relations cases).

One of the basic principles of a democracy is that people have a right to know what is done in their courts. Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994). Correlative of this principle is the vital function of the press to subject the judicial process to extensive public scrutiny and comment. Id. (citing Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983)). Thus, there is a strong presumption in favor of the right of access in civil cases. Seeid.; see alsoIDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013) (stating that the common-law right of access applies to civil proceedings).

B. Pre-trial proceedings

The Supreme Court of Arkansas said the general rule is that “that pretrial proceedings and their record must be open to the public, including representatives of the news media, and before an exception to that general rule is made, the test set out in Arkansas Television must be met.” Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 215, 662 S.W.2d 826, 827 (1984) (citing Arkansas Television Co. v. Tedder, 281 Ark.152, 157, 662 S.W.2d 174, 176 (1983) (creating a two-part test for closure: “the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to fair trial.”)). The State’s Supreme Court ruled that civil litigants who seek to keep their cases sealed should file motions to dismiss and settle out of court because the presumption is that settlements that take place in court become “the public’s business.” Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 247, 878 S.W.2d 708, 712 (1994).

D. Post-trial proceedings

E. Appellate proceedings

The record and accompanying briefs, motions, or other filings in all adoption appeals and all appeals originating in the juvenile division of circuit court shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion. In any other appeal in which counsel for either side believes that a person’s identity should be protected by the Court, counsel may move the Court to do so. Ark. Sup. Ct. R. 6-3(a).

VI. Access to civil records

A. In general

The United States Court of Appeals for the Eighth Circuit has held that the common-law right of access—explained in Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)—applies to judicial records in civil proceedings. IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013).

B. Dockets

The Supreme Court of Arkansas adopted a policy that grants public access to court records, including all court records, including the register of action and docket sheets, available to the public during business hours established by the court. Ark. Sup. Ct. Admin. Order No. 19. The Administrative Order also said that “[c]ourts should endeavor” to make information, including dockets, available by remote access “when available in electronic form.” Ark. Sup. Ct. Admin. Order No. 19(V)(A)(3).

E. Trial records

The Supreme Court of Arkansas found that the Chancellor erred in sealing the final order in a paternity suit. Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 123, 871 S.W.2d 352, 355 (1994). The court went further and said that secret final orders could defeat the synergy of the peoples’ right and the press’s function, especially in cases in which the State is a party. Id., 871 S.W.2d at 355.

F. Settlement records

If the parties to a lawsuit wish to enter an agreement and keep it secret, they may agree upon a settlement and file a motion to dismiss litigation between them. Arkansas Best Corp. v. Gen. Elec. Capital Corp., 317 Ark. 238, 247, 878 S.W.2d 708, 712 (Ark. 1994). In that situation, the settlement remains their private business. Id. If, however, they wish to make the settlement a court record and seek the imprimatur of a court, then it becomes the public’s business. Id.

G. Post-trial records

H. Appellate records

The record and accompanying briefs, motions, or other filings in all adoption appeals shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion. In any other appeal in which counsel for either side believes that a person’s identity should be protected by the Court, counsel may move the Court to do so. Ark. Sup. Ct. R. 6-3(a).

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

Historically, answers given to questions propounded by a grand jury were not public records. Davis v. Cir. Ct. of Pulaski County, First Div., 244 Ark. 142, 149, 424 S.W.2d 149, 153 (1968); see also Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940) (“[T]he grand jury is an inquisitorial body, the proceedings of which are intended to be kept secret, and cannot be examined and reviewed by a trial court upon a motion to set aside or quash an indictment, except for cause specified by the statute.” (citing State v. Fox, 122 Ark. 197, 182 S.W. 906 (1916)).

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

The record and accompanying briefs, motions, or other filings in all adoption appeals shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion.

D. Prohibitions on photographing or identifying juveniles

In Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000), a trial judge’s gag order issued in juvenile criminal case was overbroad and violated the First Amendment because there was no overriding state interest to warrant a prohibition of photographs of the defendant and others entering and leaving the courthouse.

In addition, Administrative Order No. 6 states that juvenile matters in circuit court shall not be subject to broadcasting, recording, or photographing. Ark. Sup. Ct. Admin. Order No. 6(c)(3).

C. Competency and commitment proceedings

D. Attorney and judicial discipline

Anytime the Judicial Discipline & Disability Commission takes official action with respect to a complaint about a judge, the matter should be open to public knowledge. If the commission decides on action short of the filing of formal charges against a judge, its letter to the judge containing an admonition or suggested adjustment shall be open to public inquiry. The letter shall contain all material facts relating to the proceeding and the conduct of the judge as well as any admonition or adjustment, including any terms and conditions, imposed by the commission. Records of the commission’s investigations leading to an admonition or adjustment will remain confidential, absent waiver by the judge or one of the other exceptions stated in Rule 7, but the action taken by the commission will not. In the matter of Rules 7 and 9 of the Arkansas Judicial Discipline and Disability Commission, 302 Ark. 633, 790 S.W.2d 143, 145 (1990).

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

A gag order is a restraint on the freedom of the press, and even if it is narrow in scope and duration, it is subject to the closest scrutiny. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 306 (2000). While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. Id.; see alsoHelena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (Ark. 2006). A gag order restricting the news media from publishing something that transpired in open court is usually an unconstitutional prior restraint on speech. Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (2006).

Under Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the court room. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 307 (2000).

Finally, the Arkansas Rules of Criminal Procedure say that no rule of court or judicial order shall be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case. Ark. R. Crim. P. 38.1.

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

Arkansas Supreme Court Administrative Order No. 6 governs the use of cameras and other technology in the courtroom. The judge has discretion to authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent to it during proceedings, recesses, and on other occasions. These restraints appear to be directed at the press. A party or his attorney may make a timely objection to preclude broadcasting, recording, or photographing of the proceedings. The Supreme Court of the United States has said that a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, even if the defendants object. Chandler v. Florida, 449 U.S. 560 (1981).

The Supreme Court of Arkansas has said that willful disobedience of an order not to use cameras could result in automatic reversal or retrial. SeeJim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); see alsoFord v. State, 276 Ark. 98, 276 Ark. 98, 633 S.W.2d 3 (1982). In order to receive an automatic reversal on appeal, the moving party would have to show that she or he suffered prejudice resulting from the taping. Smith v. State, 314, Ark. 448, 863 S.W.2d 563, 566 (Ark. 1993).

C. Tips for covering courts in the jurisdiction

Obtaining Access to Information Excluded from Public Access

Even if information or records are excluded from public access, individuals and the press may be able to access them. Any requestor can make a verified written request to the court that has jurisdiction over the record. The request must show that: (1) reasonable circumstances exist that require deviation from the general protections in Administrative Order No. 19; (2) the public interest in disclosure outweighs the harm in disclosure; or (3) the information should not be excluded from public access under Section VII of Administrative Order No. 19.

The person seeking access to the record must notify the parties or provide the court with the reason why notice could not or should not be given. The court must grant a request to allow access following a hearing on the request, if the requestor demonstrates by a preponderance of the evidence one of the three requirements above. Ark. Sup. Ct. Admin. Order No. 19(VIII)(A).